Madras High Court
J.Ajit Babu vs State Rep. By on 22 October, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan, J.Sathya Narayana Prasad
Crl.A.(MD)No.73 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 04.09.2024
PRONOUNCED ON : 22.10.2024
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
AND
THE HON'BLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
Crl.A.(MD)No. 73 of 2021
J.Ajit Babu ... Appellant / Sole Accused
Vs
State rep. by
The Inspector of Police
All Women Police Station
Thiruvaiyar Women Police Station
Thanjavur.
(Crime No. 2/2017) ...Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C. to set
aside the Judgment dated 28.02.2020 passed in S.C.No. 129 of 2019 on
the file of the learned Sessions Judge for the Sexual Offences against the
Children Special Court, Thanjavur and acquit the appellant/sole Accused
of the charge.
For Appellant : Mr. S. Sivasubramanian
for Mr.E.Somasundaram
For Respondent : Mr. A.Thiruvadi Kumar
Additional Public Prosecutor
1
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Crl.A.(MD)No.73 of 2021
JUDGMENT
The accused in Special S.C.No. 54 of 2017 (129 of 2019), who
had suffered conviction for offence punishable under Section 366 of IPC
and sentenced to undergo 10 years rigorous imprisonment and fine of Rs.
5,000/- in default one year simple imprisonment and also suffered
conviction for punishment of offence under Section 5(l) read with
Section 6 of POCSO Act, 2012 and sentenced to life imprisonment and
fine of Rs.5,000/- in default one year simple imprisonment by Judgment
dated 28.02.2020 by the learned Mahila Court, Thanjavur, has filed the
present Criminal Appeal.
2.The victim child was a student of 11th standard. She was in
relationship with the accused for two years. She had come home for the
summer vacation in May 2017. It was her contention that the accused
presurrised her to marry him. This was objected to by her parents, who
complained to the parents of the accused.
3.It is contended on behalf the prosecution that on 19.05.2017, the
accused enticed the victim child to go with him and took her from her
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normal place of residence at Thiruvaiyaru to the outskirts of Chennai to
the house of his uncle. She was confined there for about 2 ½ months. It
is further contended that he sexually assaulted her. Thereafter, since her
father had given a complaint, enquires were made and fearing reprisal,
the accused brought the victim child back. A complaint has been lodged
consequent to which FIR in Cr.No. 2 of 2017 had been registered on
19.05.2017 under Section 366A IPC. After investigation, the final report
had been filed before the Mahila Court / Fast Track Mahila Court,
Thanjavur, which was taken cognizance as Spl.S.C.No. 54 of 2017 for
commission of offences punishable under Section 366(A) IPC and
Section 6 POCSO Act, 2012. After following due procedure, charges had
been framed under the aforementioned provisions on 05.09.2019. The
accused denied the charges and claimed to be tried.
4.The prosecution was then called upon to prove the charges. The
prosecution examined PW-1 to PW-13 witnesses and marked as exhibits,
Exs. P-1 to P-14. No material objects were produced. On completion of
examination of prosecution witnesses, the accused was questioned with
respect to the incriminating evidence as enunciated under Section 313(1)
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(b) of Cr.P.C.
5.On 28.02.2020, additional charges were framed against the
accused for offences under Section 366 IPC and under Section 5(l) read
with 6 of POCSO Act, 2012. The gist of the charges remained the same.
The provision of law alone were altered. No additional evidence was
taken.
6.By Judgment dated 28.02.2020, on the same day when the
additional charges had been framed, the accused was convicted for
offences punishable under Section 366 IPC and under Section 5(l) read
with 6 of POCSO Act, 2012 and sentenced as aforementioned.
7.The present Appeal has been filed questioning such conviction
and sentence.
8.The facts of the case are that the victim child, who according to
the birth certificate in her school transfer certificate marked as Ex.P-8
was born on 21.12.1999, but according her evidence was born on
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10.10.2000, at any rate, less than 18 years of age as on 19.05.2017 was
enticed away from her house by the accused, who was known to her for
the past two years and taken from Thiruvaiyaru to the outskirts of
Chennai to the house of his uncle PW7 and kept in confinement for about
two months. During that time, it is in her evidence that she was subjected
to sexual assault. Later, when it transpired that her father/PW-1 had
given a complaint consequent to which FIR in Cr.No. 2 of 2017 had been
registered against the accused for offence punishable under Section 366A
IPC and on enquiries being made, the accused had brought her back.
9.In her evidence, the victim, who was examined as PW-2 stated
that she knew the accused for two years and that he had, under threat that
he would commit suicide, forced her to go with him and took her to the
house of his uncle PW-7 and kept her in confinement for 2 ½ months.
She stated that she was subjected to sexual assault. PW-7 then received a
phone call from her father and when it was evident that enquiries were
being made, she was brought back to the High Court of Madurai Bench,
wherein H.C.P(MD)No.1082 of 2017, had been filed. She was subjected
to medical examination at Thanjavur Medical College and Hospital. Her
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statement under Section 164(5) Cr.P.C., was also recorded which was
marked as Ex.P-1. She also identified her signature and thumb
impression in her Confidential Medical Report as Exs. P-2 and P-3. In
the report, it was recorded that she had gone with the accused and that
she had known him for two years. It was also recorded that they had
consensual physical relationship. It was however stated that there were
no injuries in any part of her body. During the course of her evidence,
she stated that the accused was known to her and was a resident of the
same town, residing just about 5 to 6 houses away. She had further
stated that she knew him from the time when she was in 9th/10th Standard.
Her parents had advised her to exercise caution till she attains the age of
18 years. She also stated that her actual date of birth is 10.10.2000 and
not 21.12.1999 as recorded in her school certificate.
10.The prosecution further examined her father as PW-2. He also
confirmed that he knew the accused earlier. He further stated that on
19.05.2017 when he came home in the evening at around 5 to 5.30 p.m.,
after doing agricultural coolie work he found the victim child missing.
He had earlier complained to the parents of the accused about his
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behaviour. He had also complained to the Headman of the Village. He
went over to the house of the accused. His parents informed that the
accused also not available. They all concluded that the children ran away
together. Thereafter, he had given a complaint before the All Women
Police Station, Thiruvaiyaru wherein FIR in Cr.No. 2 of 2017 had been
registered for offence under Section 366-A IPC. He identified his
complaint which was marked as Ex.P-4.
11.He further stated that the police were dragging the issue stating
that they were searching for his daughter/victim child. He forwarded
complaints to the Superintendent of Police.
12.Thereafter, he came to know that the victim child was in the
house of PW-7, who is a relative of the accused. He was then informed
that his daughter had been located and that she would be produced before
the Madurai Bench of the Madras High Court, wherein the
H.C.P(MD)No.1082 of 2017 was pending. During the proceedings
before the Madurai Bench of Madras High Court, his daughter was
handed over to him. He also stated that his daughter informed that the
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accused had enticed her to go with him on the promise of marriage. The
witness withstood the cross examination and reiterated that the accused
had taken away his daughter to the house of PW-7.
13.The prosecution further examined as PW-3 an uncle of the
victim child. He also stated about the missing of the victim child and the
efforts taken to locate her.
14.Subsequent to the registration of the FIR and the location of
the victim child, the investigation was taken over by PW-13 Inspector of
Police at All Women Police Station, Thiruvaiyaru. In her evidence, she
stated that she prepared the rough sketch (Ex-P11) of the house of the
accused in the presence of witness Vanathaiyan (PW4) and Anandraj (not
examined). She then recorded the statement of the Meenambika (PW5)
and Janava Mary (not examined), Jeeva (not examined) and Anbu (not
examined). She also recorded the statements of Divyanathan and
Robbert (both not examined). She was then informed that the accused
had surrendered before the Judicial Magistrate Court on 21.07.2017. She
then went over to the house of PW-7 and prepared an observation
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mahazar Ex.P-12 and rough sketch Ex.P-13. She then produced the
victim child before the Madurai Bench of Madras High Court wherein
H.C.P.(MD)No. 1082 of 2017 was pending. She then handed over the
custody of the victim child to her parents. She then directed medical
examination of the victim child on 19.02.2017. She also directed
medical examination of the accused. The Accident Register and
Confidential Medical Examination Report relating to the victim child
were marked as Exs.P-6 and P-7. The Medical Report of the accused
was marked as Ex.P-9. She also obtained the Transfer Certificate from
the school where the victim child was studying was marked as Ex.P-8.
She then directed recording of the statement of the victim child under
Section 164(5) Cr.P.C., by the Judicial Magistrate, Thiruvaiyaru. The
said statement was marked as Ex.P-1. She also recorded the statement of
the school Headmistress, sister Arokiya Mary (PW6) and the uncle of the
accused (PW7) and Dr.Tamil Mani (PW-10). Thereafter, she filed final
report before the Court charging the accused with an offences punishable
under Section 366A IPC and under Section 6 of POCSO Act, 2012.
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15.During her cross examination, she stated that she did not seize
the birth certificate of the victim child and also did not examine and
record the statement of the Doctor, who conducted the medical test of the
victim child. During her re-examination, she stated that she was
informed that the victim child was born in the home in the village and
therefore, the birth had not been registered.
16.PW-7 was the witness in whose house the accused had kept the
victim child in confinement. He did not support the case of the
prosecution and was declared hostile.
17.PW-8, who knew PW-7 and was related to him was also
declared hostile.
18.The learned trial Judge on analysis of the evidence had, on the
date of delivering the Judgment framed additional charges, charging the
accused with commission of offences punishable under Section 366 IPC
and under Section 5(l) read with 6 of POCSO Act, 2012. The original
charge was under Section 366-A of IPC and Section 6 of POCSO Act.
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19.The trial Judge held that the charges were proved by the
prosecution and accordingly, convicted the accused for the
aforementioned offences and sentenced him to undergo imprisonment for
10 years for offence punishable under Section 366 IPC and imposed fine
of Rs.5,000/-, in default to undergo 1 year simple imprisonment and also
sentenced him for offence punishable under Section 5(l) read with
Section 6 of POCSO Act, 2012 to life imprisonment and fine of Rs.
5,000/- in default 1 year simple imprisonment. The learned Trial Judge
also recommended payment of compensation of Rs.2/- lakhs by the
Government to the Victim Child.
20.Questioning such conviction and sentence, the accused has
filed the present Criminal Appeal.
21.Heard arguments advanced by Mr.S.Sivasubramanian, learned
counsel for the appellant/accused and Mr.A.Thiruvadi Kumar, learned
Additional Public Prosecutor for the respondent.
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22.Mr.S.Sivasubramanian, learned counsel for the
appellant/accused pointed out the facts of the case and laid stress on the
fact that the victim child and the accused knew each other for two years
and that the victim child had voluntarily gone away with the accused
without raising any protest and had travelled with him from Thiruvaiyaru
to the house of PW-7 in the outskirts of Chennai. He stated that the
victim child never complained about being forcibly taken away by the
accused and pointed out her statement in the Confidential Medical
Examination Report Ex.P-7, in which she had informed the Doctor that
she had gone away with a known person, who she had known for two
yeas and she had gone out of her own volition on 09.05.2017 and also
had physical relationship. The learned counsel further pointed out that
the Doctor, who had recorded her statement and had conducted the
medical examination had not been examined as a witness by the
prosecution. He pointed out that therefore, the prosecution had not
brought before the Court the true facts and alleged that they had
suppressed the statement of the victim child before the Doctor, who had
first examined her and also had not examined the Doctor as a witness.
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23.The learned Counsel then pointed out the contents in Ex.P-7
wherein it had been stated that there were no injuries on her body and
that there was not evidence that she had conceived. He therefore pointed
out that the offence under Section 5(l) of the POCSO Act, 2012 was not
attracted. He therefore stated that the offence under Section 366 IPC is
also not attracted since the said offence stipulates kidnaping or abduction
or inducing a women to compel her marriage or for illicit intercourse.
24.The learned counsel pointed out that the victim child had also
received compensation as directed by the trial Court and further stated
that the accused is prepared to compensate her further. The learned
counsel therefore stated that the conviction of the accused and the
sentence imposed should be set aside by this Court.
25.Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor
however pointed out the evidence of PW-1 the victim child and stated
that she had very clearly stated about how she was enticed go out of her
house on 19.05.2017 and how she was forced to stay in confinement in
the house of PW-7 for about 2 ½ months and the ill-treatment meted out
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to her at that place. The learned Additional Public Prosecutor pointed
out that it was only after two months that she was rescued consequent to
filing of H.C.P(MD)No.1082 of 2017 before the Madurai Bench of the
Madras High Court. He pointed out that viewed from any angle, she still
was a minor less than 18 years of age. The learned Additional Public
Prosecutor further pointed out that Ex.P-7 contained all details and
therefore, the non examination of the Doctor would not affect the case of
the prosecution.
26.The learned Additional Public Prosecutor also, on instructions,
forwarded the communication sent on behalf of the District Collector,
Tiruchirapalli wherein it had been stated that if the victim child is
eligible, then under the scheme of the Government, she could be
accommodated for nursing training. The learned Additional Public
Prosecutor pointed out all these facts and asserted that the Criminal
Appeal deserves to be dismissed.
27.We have carefully considered the arguments advanced and
perused the materials available on record.
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28.After conclusion of the arguments, we had a discussion with
the victim child in the chambers on 22.08.2024. She had suffered
physically and emotionally and is suffering economically. We asked her
about the possibility of further rehabilitating her both in society and
economically. She expressed an inclination to pursue nursing course in
the next academic year at Tiruchirappalli. It was under those
circumstances that we had placed a request before the learned Additional
Public Prosecutor to find out whether there were any rehabilitation
scheme of the Government. We must place our appreciation on record.
We were given a copy of communication dated 20.09.2024 in Na.Ka.No.
2681/A-1/2024 addressed to the Additional Public Prosecutor of the
Madurai Bench of the Madras High Court that the District Collector,
Tiruchirapalli, is prepared to take on board the victim child if she is
eligible and admit her to nursing course which we hope, would provide a
stable future for her.
29.The case of the prosecution is that the victim child, who
according to the certificate produced, namely, her school certificates
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under Ex.P-8 and Ex.P-14 was born on 21.12.1999 and therefore, less
than 18 years as on 19.05.2017 had been enticed away from the house of
her lawful guardian/father by the accused.
30.The evidence in this regard is clear and convincing. The
victim child had very categorically stated that she had known the accused
for two years and on that very day, when she was enticed and go away
(19.05.2017), the accused had threatened that if she does not, he would
commit suicide. He gave her a very narrow option. She had to agree to go
with him. She was then taken to the outskirts of Chennai to the house of
PW-7.
31.PW-7 however did not support the case of the prosecution. We
hold that it is only natural that he would not do so, since he had
harboured a minor child in his house and had not taken any efforts to
hand her over to the father. It is also in evidence that the father of the
victim child who was examined as PW-2 had come to know that the
victim child and the accused were residing in the house of PW-7, but was
not given correct information, when he enquired.
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32.It must be stated that the victim child knew the accused, who
was residing just about 5 or 6 house away from her house. But we also
hold that the said affinity did not give him the liberty to take her away
from lawful guardianship. After being brought back consequent to the
directions of the Madurai Bench of the Madras High Court wherein
H.C.P.(MD).No. 1082 of 2017 had been filed, the victim child was
subjected to medical examination. The report had been marked as
Ex.P-7. She admit her signature and thumb impressions on the same
which were marked as Exs.P-2 and P-3.
33.She had also given a statement under Section 164(5) Cr.P.C.
That was marked as Ex.P-1. The father had given a complaint which was
marked as Ex.P-4. The FIR which was recorded was marked as Ex.P10.
All these documents point out to the fact that the accused had kept the
victim child in confinement at Chennai away from her normal place at
residence at Thiruvaiyaru. But it is also to be admitted that in her
statement before the Doctor, she had stated that she had gone with the
accused out of her own volition. To balance that statement, it must be
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kept in mind that she was a minor and therefore, could not give lawful
consent. Even she had consented, it cannot be taken note of under law.
34.In 2004 SCC Crl. 1545 (Moniram Hazarika Vs. State of
Assam), the Hon'ble Supreme Court had held with respect to the
ingredients under Section 366 IPC as follows:-
“6. As stated above, the learned counsel for the
appellant placed strong reliance on the judgment of this
Court in Varadarajan case [AIR 1965 SC 942 : (1965) 2
Cri LJ 33] . The facts of that case show that the minor in
that case left the house of the legal guardian as per her
own choice and not on the basis of any enticement or
persuasion on the part of the accused. This is clear from
the following observations of this Court in that case: (AIR
p. 944, para 7)
“There is not a word in the deposition of Savitri
from which an inference could be drawn that she left the
house of K. Natarajan at the instance or even a
suggestion of the appellant. In fact she candidly admits
that on the morning of October 1st, she herself
telephoned the appellant to meet her in his car at a
certain place, went up to that place and finding him
waiting in the car got into that car of her own accord. No
doubt, she says that she did not tell the appellant where to
go and that it was the appellant himself who drove the car
to Guindy and then to Mylapore and other places.
Further, Savitri has stated that she had decided to marry
the appellant. There is no suggestion that the appellant
took her to the Sub-Registrar's office and got the
agreement of marriage registered there (thinking that this
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was sufficient in law to make them man and wife) by force
or blandishments or anything like that.”
7. It is on the basis of the said finding that the
minor in that case walked out of the house of her
guardian without any inducement from the accused; this
Court came to the conclusion that the accused in that
case was not guilty of the offence. It is also worthwhile to
notice what this Court said about the act of the accused
in such cases which amounts to enticement which is found
in para 10 of the said judgment and which reads thus:
(AIR p. 945)
“10. It would, however, be sufficient if the
prosecution establishes that though immediately prior to
the minor leaving the father's protection no active part
was played by the accused, he had at some earlier stage
solicited or persuaded the minor to do so.”
8. It is clear from the above observations of this
Court that if the accused played some role at any stage by
which he either solicited or persuaded the minor to
abandon the legal guardianship, it would be sufficient to
hold such person guilty of kidnapping. ”
35.The evidence with respect to penetrative sexual assault
however is not available. In her evidence, she only stated that she had
been subjected to sexual assault. The Medical Report, Ex-P11 also does
not confirm that she had been subjected to penetrative sexual assault. We
would therefore hold that the charge under Section 366 IPC had been
proved. We would however set aside the conviction under Section 5(l)
read with Section 6 of POCSO Act but rather convict the accused for
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offence punishable under Section 7 of POCSO Act and sentence him
under Section 8 of the POCSO Act, 2012 for sexual assault.
36.We would also issue a direction to the District Collector,
Tiruchirappalli to examine the eligibility of the victim child to be
admitted in the course in Nursing in Tiruchirappalli under the
Government Scheme.
37.We would also direct the accused to pay compensation directly
to the victim child for a sum of Rs.3/- lakhs to be paid within a period of
8 weeks from this date. The amount should be deposited in Fixed Deposit
for one year in the name of the victim child in any one Nationalised Bank
and the Fixed Deposit should be deposited in Madurai Bench of Madras
High Court to the credit of this Crl.A.(MD).No. 73 of 2021.
38.We would also interfere with the sentence imposed on the
accused.
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39.In result, we hold as follows:
(1) the accused is convicted for offence punishable under
Section 366 IPC and sentenced to undergo rigorous imprisonment for
three years. We retain the fine of Rs.5,000/- as directed by the trial Court.
(2) The accused is convicted for offence under Section 7 of
POCSO Act punishable under Section 8 of POCSO Act, 2012 and
sentenced to undergo rigorous imprisonment for three years. We would
retain the fine of Rs.5,000/- as imposed by the trial Court.
(3) We direct both the sentences to run concurrently.
(4) We also direct that the period of confinement already
undergone either during remand or after conviction by the trial Court to
be set off under Section 428 Cr.P.C.
(5) We direct the accused to deposit for one year in Fixed Deposit
a sum of Rs.3,00,000/- in the name of the victim child and deposit the
Fixed Deposit Receipt to the credit of Crl.A.(MD).No. 73 of 202 in the
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Madurai Bench of the Madras High Court. On such deposit, we would
place a request on Mr. A.Thiruvadi Kumar, learned Additional Public
Prosecutor, to call upon the Inspector of Police, All Women Police
Station, Thiruvaiyaru, to issue notice to the victim child and the Registry
to hand over the fixed deposit receipt to the victim child on proper
identification and acknowledgement.
(6) We would place a request on the District Collector,
Tiruchirappalli, to, in accordance with the letter dated 20.09.2024 in
Na.Ka.No. 2681/A-1/2024 issued to the Additional Public Prosecutor,
Madurai Bench of the Madras High Court, from his office, to examine, if
the victim child is otherwise eligible and provide her admission in
Nursing Course from the funds available in the office of the District
Collector in the next academic year (2025-2026).
40.The Bench expresses its deep gratitude to the District
Collector, Tiruchirappalli in coming forward to be of assistance to the
victim child.
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41.This Criminal Appeal stands partly allowed as aforementioned.
The trial Court is directed to take the accused in custody to serve the
remaining portion of sentence.
[C.V.K., J.] & [J.S.N.P., J.]
22.10.2024
Internet :Yes/No
Index :Yes/No
NCC :Yes/No
vsg
To
1.The Sessions Judge for the Sexual Offences
against the Children Special Court, Thanjavur.
2.The Inspector of Police,
All Women Police Station,
Thiruvaiyar Women Police Station,
Thanjavur.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
4.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court, Madurai.
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C.V.KARTHIKEYAN, J.
And
J.SATHYA NARAYANA PRASAD, J.
vsg
Judgment made in
22.10.2024
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